Ashgar Khan vs Union Of India (Uoi) And Ors.

3. We have heard [he learned counsel for the parties. This appeal is directed against the judgment of the Jodhpur Bench of the Rajasthan High Court dated 22-5-1996 whereby the Division Bench of the High Court has dismissed the special appeal filed by the appellant against the judgment of the learned Single Judge on the writ petition filed by him. The only question which arises for consideration in the writ petition of the appellant was with regard to his date of birth. The case of the appellant was that his date of birth as recorded in the service record was 30-11-1932 but he was being retired from the service on the basis that his date of birth was 1-7-1926. The learned Single Judge by his order dated 8-9-1994 dismissed the writ petition on the view that even on the basis of 30-11-1932, the date of birth claimed by the appellant, he would have retired on 30-11-1990 and since that date has already passed the writ petition had been rendered infructuous. The said view of the learned Single Judge has been affirmed by the Division Bench in special appeal.

4. In our opinion, the fact that during the pendency of the writ petition the appellant had attained the age of retirement on the basis that his date of birth is 30-11-1932, as claimed by him, would not mean that the writ petition which had been filed earlier had become infructuous. On account of the appellant having attained the age of retirement he could not have been granted the relief of being retained in service after his retirement on the basis that his date of birth was 1-7-1926 but the appellant could have been given other consequential relief in his writ petition if his date of birth was 30-11-1932. He was wrongly retired from service on the basis that the date of birth was 1-7-1926. The High Court was, therefore, in error in dismissing the writ petition on the ground that it had become infructuous. The High Court, in our opinion, should have examined the claim of the appellant on merits and if the appellant is able to show that he was entitled to continue up to 30-11-1990 on the basis that his date of birth is 30-11-1932 and that he was retired prematurely on a wrong basis that his date of birth is 1-7-1926, the High Court may consider the relief that could be granted to the appellant. The appeal is, therefore, allowed, the judgment of the Division Bench of the High Court as well as that of the learned Single Judge are set aside and the writ petition of the appellant is remitted to the High Court for consideration on merits. Mo order as to costs.